1995 P Cr (PLP)

‑‑‑‑S. 409‑‑‑Prevention of Corruption Act (1I of 1947), S.5(2)‑‑‑Trial Court had acquitted the accused for want of sanction for prosecution on 25‑5‑1989 but subsequently relying on the Federal Shariat Court's judgment reported in P L D 1989 FSC 84 holding that from 1‑1‑1990 sanction for prosecution in respect of a public servant was not necessary, directed the trial in the case to proceed on the application moved by prosecution‑‑‑Held, Trial Court had acquitted the accused in 1989 when sanction for prosecution was necessary and it could not rely upon the law which came into existence on 1‑1‑1990 and could not recall the order of acquittal and decide to proceed with the trial‑‑‑Trial Court's order directing the trial to proceed was set aside accordingly. P L D 1989 FSC 84 ref Ghulam Sabir for Petitioner. Najam‑uz‑Zaman, A.A.‑G. for the State, Date of hearing: 16th June 1993 The facts leading to the filing of this Criminal Revision are that a case under section 409, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947 was registered with Police Station Anti‑Corruption, Lahore. Charge against the petitioner, namely Mst. Hifsa Malik, a Storekeeper in the Social Welfare Department, Lahore, was framed and thereafter the trial Court vide its order, dated 25‑5‑1989 acquitted the accused‑petitioner on the ground that sanction for prosecution was not obtained from the competent authority and the Court had taken cognizance in the matter therefore, relying upon Criminal Revision No.223 of 1988 acquitted the accused. Thereafter, Special Public Prosecutor on 3‑6‑1990 moved an application requesting to start the trial of the petitioner because the Federal Shariat Court in its judgment, reported in P L D 1989 FSC 84, had held that from 1‑1‑1990 sanction for prosecution in respect of a public servant was not necessary. The learned trial Court vide its detailed order, dated 2‑9‑1990 accepted the application and directed that the trial in the case shall proceed. Learned counsel for the petitioner has challenged this order of the trial Court, dated 2‑9‑1990 on two grounds. It was contended that the judgment of the Federal Shariat Court was to become operative with effect from 1‑1‑1990, whereas the order of acquittal was passed as far back as 25‑5‑1989, therefore, the judgment could not have retrospective effect. The other point taken by learned counsel for the petitioner was that the trial Court had acquitted the petitioner and thereafter it became functus officio. It did not have powers to review its order of acquittal and, in such circumstances, the order directing the commencement of the trial was bad in law. Learned Assistant Advocate‑General, appearing in the case, conceded to the proposition by submitting that the Court did not have the power of review and no appeal was filed challenging the acquittal.

2. I have heard the learned counsel at length and gone through the file. The Court had acquitted the petitioner in 1989 and thereafter could not rely upon the law, which came into existence on 1‑1‑1990. Prior to 1‑1‑1990, sanction for prosecution would be necessary. The trial Court had acquitted the B petitioner, and, in such circumstances, could not recall the order of acquittal of the petitioner, passed by it, and could not decide to proceed with the trial. In these circumstances, I accept the petition and set aside the order impugned. The revision petition is disposed of accordingly. N.H.Q./H‑141/L Revision petition accepted.